A judge in Manhattan on Monday scheduled the retrial of Pedro Hernandez for the 1979 kidnap-murder of Etan Patz to begin on Feb. 22, over complaints from the defense that it should be sooner.
Supreme Court Maxwell Wiley said he was pushing the new trial into February to accommodate new prosecutor Joel Seidemann, who needs time to get up to speed after the prosecutor who tried the case this year quit to run for Staten Island district attorney.
But defense lawyer Harvey Fishbein complained that Hernandez has been in jail since mid-2012, and an early opportunity for him to win his freedom should take precedence over Seidemann's convenience. Fishbein wanted an early January start to the retrial.
"It's what's fair, what's right, what's just, what's human," Fishbein said.
Hernandez, a disabled former bodega worker from Maple Shade, N.J., is accused of luring six-year-old Patz into a SoHo basement and strangling him to death 36 years ago, in one of the nation's most notorious unsolved child disappearances.
Earlier this year, a jury deadlocked 11-1 in the case, after a 5-month trial and more than three weeks of deliberation. Wiley said he expected the retrial to last until June, at which point Hernandez will have been in jail for four months.
For the second time since the trial ended, jurors who voted to convict Hernandez showed up in court to show support for the prosecution and Etan's family. Three of them sat with the boy's father, Stan Patz, who has also spoken publicly about his belief that Hernandez is guilty.
"It's an emotional connection," said juror Joan Brooks afterward. " We've grown close, and this part of our lives now."
In court, Seidemann asked Wiley to impose a gag order on Fishbein, complaining that he spoke about the case in short hallway news conferences throughout the trial, and that the practice risked tainting jurors.
Wiley said he expected lawyers to comply with court rules, but declined to issue any specific order. After court, Seidemann spoke with both Patz and the jurors who showed up to support the prosecution, but declined to comment and would ask them -- like Fishbein -- to stop speaking out.
Two of the jurors filed into the district attorney's office building with Seidemann after the hearing. Joan Vollero, the spokesman for the district attorney, declined to comment on what role the ex-jurors were playing with the prosecution.